Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Huebner v The Nominal Defendant [2015] NSWCA 333 Hearing dates: 9 October 2015 Date of orders: 28 October 2015 Decision date: 28 October 2015 Before: Hoeben JA at [1]; Sackville AJA at [83]; Emmett AJA at [89] Decision: 1 Grant to the appellant an extension of time to 2 April 2015 within which to bring the appeal. 2 The appeal is dismissed. 3 The appellant is to pay the respondent's costs of the appeal. Catchwords: TORTS – claim against Nominal Defendant – collision between motor scooter and two motor vehicles, one of which could not be identified – no issue that an unidentified vehicle involved in the accident – factual issue as to how accident occurred – unsuccessful challenge to factual findings of primary judge. TORTS – Civil Liability Act 2002 (NSW) – s 5D – factual causation – whether conduct of unidentified vehicle caused or contributed to occurrence of accident – whether findings of primary judge allowed a finding of causation to be made against Nominal Defendant. DAMAGES – Notional damages awarded in favour of appellant – apart from omission of past out of pocket expenses no error in assessment of damages by primary judge. Legislation Cited: Civil Liability Act 2002 (NSW) – s 5D Cases Cited: Fox v Percy [2003] HCA 22; 214 CLR 118 Holloway v McFeeters [1956] HCA 25; 94 CLR 470 Nominal Defendant v Puglisi (1984) 58 ALJR 474 Strong v Woolworths Ltd & Anor [2012] HCA 5; 246 CLR 182 Category: Principal judgment Parties: Nicole-Brook Huebner – Appellant The Nominal Defendant – Respondent Representation: Counsel: AS Morrison SC with AD Campbell – Appellant KP Rewell SC with WM Fitzsimmons – Respondent Solicitors: Benjamin & Robinson Lawyers – Appellant McInnes Wilson Lawyers - Respondent File Number(s): 2015/98298 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 13 February 2015 Before: Olsson SC DCJ File Number(s): 2013/82037 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. HOEBEN JA: Nature of proceedings The appellant brought proceedings in the District Court of NSW for damages for injuries suffered by her in a motor accident on King Street Newtown on 18 February 2011. There is no dispute that the appellant was the rider of a motor scooter which was involved in collisions with two vehicles, one of which was identified and the other unidentified, near the intersection of King Street with O'Connell Street at Newtown. 1. The appellant asserted that the collisions were caused by the negligence and by the prior aggressive behaviour of the driver of the unidentified vehicle. The Nominal Defendant denied that the conduct of the driver of the unidentified vehicle caused or contributed to the collisions. 2. The proceedings were heard by the primary judge, Olsson SC DCJ, between 27 and 29 January 2015. The existence of a white unidentified vehicle and the fact that such a vehicle was involved in a collision with the appellant's motor scooter was not in issue. The issue was whether the conduct of its driver caused or contributed to the harm suffered by the appellant. 3. The primary judge delivered judgment on 13 February 2015. The primary judge was not satisfied that the conduct of the driver of the white vehicle caused or contributed to the harm suffered by the appellant. The primary judge found that the appellant's own conduct was the sole cause of the collisions. Judgment was accordingly entered for the Nominal Defendant. 4. The appellant challenges the finding by the primary judge that the driving of the unidentified white vehicle did not cause or contribute to her harm. 5. The primary judge proceeded to a "notional" assessment of the appellant's damages had she succeeded on the issue of liability. There was no dispute that if the appellant had obtained judgment in her favour, agreed out-of-pocket expenses of $60,042 had to be included in the damages. For future economic loss the primary judge assessed a "buffer" of $100,000. The appellant asserts that this sum is inadequate and should also contain a component for loss of superannuation on future economic loss. LIABILITY Evidence at trial 1. The appellant gave evidence that from the commencement of King Street onwards she was riding her motor scooter behind the unidentified white vehicle, which was being driven erratically, aggressively and provocatively. She said that the white vehicle was moving backwards and forwards between the two northbound lanes of King Street without indicating, while the driver was speaking on a mobile phone. 2. The appellant said that when the two vehicles stopped at traffic lights at the intersection of King Street and Enmore Road, she was in lane two and the white vehicle was in lane one (the kerbside lane). She admonished the male driver through his open window. He responded abusively. 3. The appellant said that as they continued north on King Street, over a distance of several hundred metres, the driver of the white vehicle continued to deliberately block her path. When she slowed down so he could go ahead, the driver "braked erratically". When she changed lanes, he changed lanes in front of her. She said that she had no means of escaping him because of the peak hour traffic conditions. 4. The appellant said that when they reached the intersection at which the collisions occurred, she was in lane two and the white vehicle was in lane one, slightly behind her. She saw a black Ford Focus ahead of her in lane two at a slight angle to the right, with its right indicator activated near the right side of lane two. The appellant said that there was a "large gap" in front of the white vehicle in lane one. She activated her left indicator and moved to the left side of lane two intending to ride into the gap in lane one in front of the white vehicle. She was travelling at 30 – 40 km/h. 5. The appellant said that as she reached the rear of the Ford Focus which was waiting to turn right, the driver of the white vehicle accelerated and swerved to his right, pushing her into the stationary Ford Focus. She said that she was crushed between the two vehicles colliding with both of them. She said that the driver of the white vehicle laughed at her and left the scene of the accident. 6. In cross-examination the appellant said that she was certain that the Ford Focus in lane two was preparing to turn right. She denied that the white vehicle was next to the Ford Focus and denied that she attempted to move between the two vehicles. She denied that she collided first with the Ford Focus and bounced off the Ford Focus into the white vehicle. 7. The appellant denied that, as she travelled behind the white vehicle along King Street, she was behaving aggressively towards the driver of that vehicle, as he was to her. She denied that as the two of them approached the accident location, her motor scooter was behind, not in front of, the white vehicle. She denied that she collided with the Ford Focus then with the white vehicle as she attempted to ride between them when they were side by side. 8. Kara Rozema was a pedestrian on the western footpath of King Street (i.e. to the appellant's left), who was walking south (the opposite direction to the appellant). Ms Rozema "heard a loud crunching sound". She heard, but did not see, the collision. She was facing the opposite direction. 9. Ms Rozema said that she turned around and saw the appellant's motor scooter "getting pushed along by a white station wagon" (Black 85I). She recalled that the appellant was in lane two and that the white vehicle "was sort of mostly merged into the second lane as well" (Black 85X). 10. Ms Rozema saw a dark vehicle (the Ford Focus) in lane two, but did not know whether the appellant's motor vehicle collided with that vehicle. When she saw the two vehicles "there probably wasn't even a foot in between each of the vehicles" (Black 86K). It looked to her as if the appellant was being "squished" between the two vehicles. She recalled that the white vehicle "took off" in lane two (Black 86X). Ms Rozema recalled that the appellant came off her motor scooter and fell onto the road in lane two (Black 87P). She said that while she remembered most of the event fairly well, "a little bit of it is kind of fuzzy" (Black 87D). 11. In cross-examination Ms Rozema accepted that the appellant may have landed in lane one when she fell from her motor scooter. She accepted that when she turned around, the white vehicle was "almost side by side" with the Ford Focus. The Ford Focus in lane two was "pretty much at a stop" when she saw the appellant "squished" between the two vehicles. Ms Rozema accepted that the white vehicle may not have moved into lane two until it was past the Ford Focus. 12. When asked in re-examination where the white vehicle was in relation to the lane dividing line at the time the appellant was "squished" between the two vehicles, Ms Rozema said "I'm not a hundred percent sure of that one. That one's still a bit fuzzy" (Black 91T). Later in re-examination she said that she "would say" that the driver's side of the white vehicle was "over into lane two" (Black 92K). 13. Louie Ralevski was driving behind the appellant and the white vehicle for the whole of the length of King Street until the collisions occurred. For that distance the two were right in front of him and squarely in his view. Mr Ralevski described the interaction between the appellant's motor scooter and the white vehicle: Q. What did you actually observe in terms of the two vehicles as they travelled up King Street? A. I observed the scooter getting close to the car and then in front, and then the car getting close to the scooter. They were both - it was just dangerous, that's what I observed. That's what I saw. Q. And this movement between the two vehicles, did that continue up King Street? A. Yes, it did. Q. Again, what were you seeing as you continued up King Street ahead of you? A. Similar actions by the vehicle and the scooter. HER HONOUR Q. What sort of actions? A. Well, the scooter getting close to the car, the car moving in one lane, the scooter moving into the other from left to right, and the car moving and the scooter in front and - it was like, it was just, they were going at each other, that's what I saw, going at each other, like just - and I was right in front of it. I was seeing it happen all the way up until the incident. This happened for quite a while. Q. When you say you were right in front of it, you mean they were right in front of you? A. They were right in front of me, I apologise, yes." (Black 94.34 – 95.10) 1. In cross-examination Mr Ralevski said: "Q. Yes. So why have you changed your mind now? A. Because they were both going at each other. It wasn't only one party. It was the other party too. It wasn't - that's the way it looked to me at the time because I thought the motorcyclist was a bit silly getting very close to the car, and that's what really made me look at this thing that kept on going on and on and on for quite a while till the accident happened." (Black 100.46) 1. In his oral evidence Mr Ralevski confused the traffic lanes occupied by the white vehicle and the Ford Focus at the time of the collision. He put the white vehicle in lane two and the Ford Focus in lane one. In a statement to the police shortly after the accident, Mr Ralevski correctly identified the lanes in which the vehicles were positioned. 2. In his police statement which was made at the time of the accident, Mr Ralevski described what occurred as follows: "8 The white car slowed down because of traffic in front while the scooter sped up to get between a dark blue Ford Focus in lane two of two and the white car in lane one of two. 9 The scooter hit the dark blue Ford Focus, bounced off the Ford Focus car and into lane one making contact with the white car which was slightly in front of the Ford Focus. 10 The white car when hit did not shudder and I could not see any damage on it. 11 The white car kept driving." (Blue 462.H-P) 1. Mr Ralevski said that as the white vehicle and the Ford Focus came to the place at which the collisions occurred, they were next to each other. As they drew side by side the appellant's motor scooter was a few metres behind them. 2. Mr Ralevski described how the accident occurred on a number of occasions, both in chief and in cross-examination. His description in each case was consistent. "Q. What about the other car that you observed? A. That was in the kerbside lane. There was traffic further up. The white car was slowing down, which was in the right lane, and the scooter then - still trying to catch up to it - decided to go in between the two vehicles and at that point when it started to do that, it hit the Ford Focus, bounced off that and then I think it hit the other car and fell. That's what I saw. I don't know how much it hit it, and the other car kept driving." (Black 96N-Q) "Q. Do I understand your evidence to be that those vehicles were slowing down for the traffic ahead? Is that right? A. That's right. Q. Do I understand your evidence that the scooter was coming up from behind? … Q. Where were the vehicles in relation to each other? Do you understand what I am asking you? A. Yes. The white car was ahead and it was slowing down. Where were they to each other? The Ford Focus or the other car that was in the kerb lane was obviously behind it and as they were going, it was slowing down too. It was next to it. … Q. What did you observe the scooter do as it approached the two vehicles? A. It went into the middle in between the lanes, in the middle, to go through the two vehicles. It seemed like it wanted to go through the two vehicles to get in front of - well, to get in front of the other car obviously. That's what it seemed like but as it approached in the middle of the two lanes - as it approached, it started wobbling and hit the car and then the accident happened. Q. Which car did it hit first? A. The Ford. Q. Then after hitting the Ford-- A. It hit the Ford. This is what I saw. It hit the Ford and then bounced off the Ford and then hit the other car. That's what I think it did because you could see it. You could see it hitting it. It seemed slightly because the car just kept driving. I don't know whether it felt it or heard it or just kept driving because of what was happening. The cyclist fell down - the scooter person." (Black 97M – 98H) 1. In cross-examination Mr Ralevski said that he was positive that the Ford Focus was in lane one, i.e. the kerb lane. When he was taken to what he had said in his police statement he gave the following evidence: "Q. "The white car slowed down because of traffic in front while the scooter sped up to get between the dark blue Ford Focus in lane 2." A. Is that what I said then? It's not what I recall now. Q. So your memory now has the position of the vehicles totally reversed. The Ford Focus now is in lane 1 and the white car is in lane 2, whereas in your police statement the next day you have got them the other way around. A. I don't understand why you ask - I do understand why you are asking but where you are going, I don't understand. Q. What I'm suggesting to you is that your memory the day after is a lot likely to be more helpful than your memory today. A. It's four years ago. Absolutely. Q. I'm not suggesting to you that you are doing anything other than doing your best but I am suggesting to you that you are clearly wrong about that. A. About? Q. About which lane the two vehicles were in. A. Okay. Obviously what you have read - you're correct - and what I have just said - you're absolutely correct, but an accident did occur and that's what was happening, regardless of which lanes it was. That's what happened." (Black 99E – N) 1. Later in cross-examination Mr Ralevski said: "Q. You don't remember that though? That's not your current recollection? A. I'm saying I don't - I don't know which lane the scooter was now in but I do know that the scooter decided to go in between the lanes to catch up to that vehicle that we're having the discussion of. Q. So your memory is the scooter came from lane 1, is it? A. As I said, if I can say it again, from what I've said then in my statement to what I'm saying now are obviously two different stories and that's pretty clear. What I'm saying to you now is that the scooter came in between the two vehicles in that middle - you know, in the middle lane, shadowing, what do they call it these days, to pass or to catch up to it. Do you see?" (Black 103C – G) 1. Mr Ralevski specifically denied that the white vehicle moved forward and across from lane one into lane two, colliding with the appellant's motor scooter as the appellant attempted to move around the left hand side of the Ford Focus. He said that the motor scooter appeared to be attempting to get in front of the white vehicle by going in between it and the Ford Focus (Black 106K - M). In re-examination Mr Ralevski reiterated that the motor scooter was initially behind the two vehicles when they were side by side and moved forward and between the two vehicles, apparently attempting to move in front of them. He was definite that the scooter at no time was in front of the white car. He was definite that the scooter hit the Ford Focus first. 2. Ms Sandee Stanley was a front seat passenger in the black Ford Focus which was driven by her husband. She heard and felt, but did not see, a collision with the Ford Focus from behind whereupon her husband stopped in lane two. 3. Ms Stanley said that when the Ford Focus stopped, the appellant and her motor scooter were on the road next to it towards the front of the Ford Focus in the middle of lane one and blocking lane one. Ms Stanley got out of the Ford Focus and rendered assistance to the appellant. When she reached the appellant she said: "A. … There was a lot of yelling and crying, and she was talking about - she was cursing someone, gentleman, and indicated to me that it was a car that was ahead of her in the traffic." (Black 113D – E) 1. It was common ground that there was a big dent at the back of the Ford Focus on the near side and a scrape along that side of 35 cms in length. It was also not in issue that Mr Stanley was not intending to turn right anywhere on King Street. The first right turn he intended to make was from City Road into Broadway, some considerable distance after King Street became City Road. Findings made by the primary judge 1. The primary judge made the following findings in relation to the evidence of Ms Rozema: "40 Ms Rozema's evidence must be considered in the context that she did not see the initial impact, nor the position of the vehicles immediately prior to contact. However, she gave her evidence in a thoughtful and frank manner, making appropriate concessions. I accept her as a witness of truth. I regard her comments that the scooter was in contact with the middle of the white car to be of significance. Her observation about the position in the lanes of the white car is also of significance, but its weight is lessened by her uncertainty as to whether it was in fact in lane two." (Red 52U – X) 1. The primary judge characterised Ms Stanley as an "impressive witness". She said: "I accept Mrs Stanley's evidence; indeed it was not challenged." (Red 54C) 1. As a result of having heard Ms Stanley's evidence, the primary judge found that "the plaintiff was in error when she said that the Ford Focus was in the process of making a right hand turn". (Red 54E) 2. The primary judge described the evidence of Mr Ralevski as follows: "58 I formed the impression that Mr Ralevski was a truthful witness, albeit mistaken in this major respect. Interestingly, prior to giving evidence Mr Ralevski had been provided with a copy of the statement that he gave to police. Plainly he did not refresh his memory from it before giving evidence or he would not have made the error of reversing the position of vehicles in the lanes. Thus the oral evidence he gave was, it would seem, drawn from his memory. It was remarkably consistent with the version in the police statement. In other words, it seems to me that rather than it being a case of him being an unreliable witness because his memory was poor, the opposite is true. 59 I accept that his evidence that the driver of the white car and Ms Huebner were driving for some several hundred metres at least, in a manner that was dangerous and ill-advised." (Red 57G – N) 1. The primary judge made the following findings in relation to the driving of the appellant and the unidentified white vehicle before the accident as follows: "60 I find that the unidentified driver changed lanes repeatedly without indicating. 61 I find that Ms Huebner also changed lanes although I do not express a view as to whether this was motivated by a desire to get behind the white car and out of his way or to further antagonise him. Perhaps it was a little of both: certainly she gave him what might be said colloquially to be a piece of her mind at the traffic lights at Enmore Road. 62 The evidence of how they behaved prior to the accident is of limited importance in assessing what happened in the collision but it is very important to the credit of Mr Ralevski." (Red 57P – V) 1. The primary judge then carefully analysed the evidence of the appellant and noted that she was troubled by a number of aspects of her evidence about the actual accident. The particular matters in the appellant's evidence to which her Honour referred were: 1. The error in saying that the Ford slowed, pulled to the right of the lane, indicated to turn right and angled itself preparatory to making that turn. 2. Her inability to say whether immediately before the collision the white car was behind her or next to her but that it had slowed or stopped and she saw a chance to get in front of it. 3. The appellant's explanation that she wanted to get away from the white car was difficult to accept when pulling in front of it would have put her back in danger, whereas stopping behind would have put her in a relatively safer position. 4. The clear conflict between her evidence and that of Mr Ralevski, i.e. the appellant's evidence that the white car was in lane one behind her and that when she attempted to move into lane one it sped up and swerved at her and that of Mr Ralevski who said that the scooter was behind the white car and was moving up to pass between it and the Ford and that he did not think that the white car moved into lane two. 5. Did the appellant steer left because she did not see the Ford slowing down with enough time to brake herself? This issue arose because of the appellant's evidence that the Ford had only indicated at the last minute and that it had "not given her sufficient warning" that it was turning. 6. No witness could say with certainty that the white car was in lane two. 7. The conflict between the appellant's evidence that the white car swerved and hit her, pushing her into the Ford, when contrasted with the evidence of Ms Rozema who did not see any collision with the Ford but only with the white car. This implicitly meant that the collision with the Ford must have happened first before Ms Rozema looked around. The appellant's evidence on that issue was also inconsistent with that of Mr Ralevski. 8. The inherent implausibility of the appellant changing lanes in front of the white car if she truly wished to get away from it. 9. The fact that the appellant's complaint immediately after the collision was directed at the names which the driver had called her, rather than accusing him of having swerved into her scooter. 10. The conflict between the evidence of the appellant and that of Mr Ralevski as to the appellant's mode of driving before the accident. 11. The inconsistency between the way in which the accident had been pleaded in the second further amended statement of claim and the appellant's evidence at trial of how the accident occurred. The primary judge's list of these issues and her analysis of them is to be found at Red 57W – 60H). 1. Although the primary judge did not say so in terms, it is apparent from the list of matters which troubled her and from her analysis of them, that there was a significant problem, if not with the appellant's truthfulness, then certainly with her reliability as a witness. 2. Having carried out that analysis, the primary judge made the following specific findings: 1. The appellant and the driver of the white vehicle were both engaged in erratic and dangerous driving as they proceeded along King Street towards the accident location. (Red 60J – K) 2. The appellant's motor scooter did not at any time get ahead of the white vehicle. It was behind the white vehicle until it reached the accident location. (Red 60L – M) 3. At the accident location the white vehicle did not stop well behind other traffic in lane one leaving a "large gap" into which the appellant could ride her motor scooter. (Red 60O – Q) 4. The collisions occurred when the appellant misjudged the distance available to her to change from lane two to lane one, whereupon she "clipped" the left rear corner of the Ford Focus and bounced into the middle of the near side of the white vehicle (Red 60S – T). 5. The conduct of the driver of the white vehicle, while erratic and dangerous, was not causative of the collisions. The sole cause of the collisions was the unsuccessful attempt by the appellant to ride her motor scooter between the two adjacent vehicles or to change lanes in front of the white car and in doing so, misjudged the available space (Red 60V – X). "79 … I find that the driver of the white car was, more probably than not, aware that his car had collided with the plaintiff and I infer that he did not stop because he knew that his reckless behaviour had contributed to the accident. That is not to say, however, that his behaviour was causative of the accident. It seems to me to be most probable that Ms Huebner was disturbed by his conduct and made an error of judgment in trying to change lanes." (Red 60Y – 61E) 1. The white car did not speed up in a deliberate attempt to cause the appellant to have an accident, although it may be that he accelerated to catch up to the traffic. The white car did not swerve into lane two. (Red 61F – G) 1. By reference to s 5D of the Civil Liability Act 2002 (the Act) the primary judge was not satisfied that negligence by the unidentified driver was a necessary condition of the occurrence of harm, nor was she satisfied that the unidentified driver was negligent so that his actions were causative of the accident. Her Honour accordingly entered a verdict in favour of the Nominal Defendant against the appellant. The appeal on liability 1. The appellant raised five grounds of appeal in relation to liability. They can conveniently be dealt with in two parts – Grounds 1 and 2 are based on the findings made by the primary judge; Grounds 3 – 5 are based on factual errors said to have been made by the primary judge. Ground 1 – Her Honour erred in failing to find at [79] that the conduct of the defendant driver was causative of the accident in circumstances where she found his behaviour leading up to the accident was reckless at [79] and the plaintiff was disturbed by the defendant's conduct and made an error of judgment [79]. Ground 2 – Her Honour's finding at [83] that the negligence of the unidentified driver was not a necessary condition of the occurrence of harm was vitiated by error because her Honour misdirected herself as to the principles of s 5D of the Civil Liability Act 2002. 1. In order to understand the appellant's submissions, it is useful to set out s 5D of the Act which relevantly provides: "5D(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. … (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 1. The appellant submitted that based on the primary judge's findings that she was disturbed by the unknown driver's conduct which led to her making an error of judgment and that the unknown driver had left the scene because he knew that his reckless behaviour had contributed to the accident, a finding of causation pursuant to s 5D of the Act should have been made. The appellant submitted that in accordance with what was said by the plurality (French CJ, Gummow, Crennan and Bell JJ) in Strong v Woolworths Ltd & Anor [2012] HCA 5; 246 CLR 182 it was not necessary for causation to be established pursuant to s 5D that the particular negligence relied upon be the sole or primary cause of harm. All that was required was that the negligence be a necessary condition of the harm occurring. 2. The appellant submitted that on the factual findings made by her Honour that the reckless driving had disturbed her so as to bring about an error of judgment which caused the harm, that test had been satisfied. 3. The appellant submitted that there was no issue that the driving by the driver of the white car had been negligent and dangerous. She submitted that because of his driving she had felt threatened and vulnerable because she was on a scooter and that her intention was to get away from that driver and his intimidating behaviour. She submitted that because it was peak hour and she was unfamiliar with the side streets in the Newtown area, she had no alternative but to try to get in front of the white car and thereby avoid the intimidatory behaviour of the driver. She submitted that it was in this way that his negligent driving had brought about the error of judgment which had in turn caused the accident. 4. The appellant submitted that her evidence was consistently to the effect that she wished to get away from the driver of the white car but every time she tried, he had blocked her path and had otherwise behaved in an intimidatory way. The appellant submitted that in all the circumstances, she had no alternative but to do what she did. It followed therefore that the occurrence of the accident was a direct product of the conduct of the driver of the white vehicle. Consideration 1. Implicit in these grounds of appeal is an acceptance of the primary judge's factual findings. Included in those findings was that before arriving at the place where the accident occurred, both the appellant and the unknown driver had engaged in erratic and dangerous driving. It follows from that finding that the primary judge rejected the appellant's evidence that her primary intention was to escape from the intimidatory conduct of the driver of the white vehicle. It also follows from the primary judge's findings that she rejected the appellant's version of how the accident occurred. 2. These two grounds of appeal, therefore, need to be considered against the background of all of the factual findings made by the primary judge. No doubt the behaviour of the driver of the white vehicle irritated, angered or to use the words of the primary judge, "disturbed" the appellant. It was common ground that she reprimanded him at the traffic lights at Enmore Road. The difficulty for the appellant in making out these grounds of appeal is that once the white vehicle reached the accident location, there was no behaviour on the driver's part that contributed to the collision. On her Honour's findings the white vehicle drew up beside the Ford Focus and both vehicles were travelling slowly in peak hour traffic. 3. At that point, the appellant had the initiative. There was no need to attempt to ride through the narrow gap between the vehicles. She could have slowed down or stopped or remained behind the Ford Focus in lane two. It was her decision to attempt to ride her motor scooter between the two vehicles when there was insufficient space to do so. There was no compulsion upon her to act in this way. 4. There was no expert or other evidence to suggest that the interaction between the appellant and the driver of the white vehicle so "disturbed" her that she was incapable of controlling her motor scooter or was otherwise compelled to take the risk which she did by driving between the two vehicles. It should be noted that at no time in her evidence in chief or in cross-examination did the appellant ever say that her driving was adversely affected by the conduct of the driver of the white vehicle. She maintained that at all times she drove safely and prudently. 5. Applying the provisions of s 5D of the Act, once her Honour made her findings as to how the accident occurred, the only negligence which was a necessary condition of the harm suffered by the appellant was the appellant's own conduct in attempting to ride her motor scooter through a narrow gap between the two adjacent vehicles. Once the primary judge rejected the appellant's version of how the accident occurred, there was no evidence of negligence on the part of the driver of the white vehicle which was a necessary condition of harm. 6. These grounds of appeal have not been made out. Ground 3 – Her Honour erred in finding that at [40] Ms Rozema's evidence about the fact that the white car was over the line and in the same lane as the plaintiff was uncertain. 1. The appellant submitted that the reason why the primary judge had rejected her evidence of how the accident occurred was because her Honour had misunderstood the evidence of Ms Rozema. The appellant submitted that properly read, the evidence of Ms Rozema clearly established that the white car was in lane two, or had driven into lane two, thereby forcing the appellant's motor scooter against the Ford Focus. The appellant submitted that Ms Rozema on two occasions clearly indicated that the white vehicle had moved into lane two. 2. The appellant submitted that the primary judge erred in preferring the evidence of Mr Ralevski to that of Ms Rozema. She submitted that Mr Ralevski's evidence was undermined by his fundamental error as to the location of the vehicles whereas no such problem adversely affected the evidence of Ms Rozema. Consideration 1. A fundamental difficulty for the appellant in maintaining this and the following two grounds of appeal is the importance of the restatement of principle in Fox v Percy [2003] HCA 22; 214 CLR 118. There the plurality (Gleeson CJ, Gummow and Kirby JJ) said: "26 After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde; Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges." 1. At [28] and [29] the plurality restated the need for there to be: "28 … In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings . 29 That this is so is demonstrated in several recent decisions of this Court . In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. …" 1. No error of that kind or anything close to it has been demonstrated by the matters relied on in support of this ground of appeal or grounds 4 and 5. The Court was not taken to anything which indicated that the decision of the primary judge was "glaringly improbable" or "contrary to compelling inferences" in the case. 2. The primary judge was entitled to treat the evidence of Ms Rozema with some circumspection. Apart from anything else, she was walking in the opposite direction, did not actually see the accident but heard "a loud crunching sound". When she turned around she observed the scooter being pushed along by the white station wagon. In her police statement she said: "5 The scooter had one rider and the other was a white station. It was a new model but I don't know what make. This station wagon was in lane two of two and the motor was on its right side. … 7 I think another car was also involved in the crash but I can't remember what it looked like." (Blue 463F J) 1. In her evidence at trial four years later Ms Rozema said: "Q. If we number the lanes from the kerb to the centre numbers 1 and 2, whereabouts were they? A. Nicole was in the second lane and the white vehicle was sort of mostly merged into the second lane as well." (Black 85V – W) 1. A preliminary problem with that evidence, as the primary judge appreciated, was that it made no allowance for the presence of the Ford Focus in lane two. At this time the Ford Focus was stationary in lane two. It was impossible for the white vehicle to be "sort of mostly merged into the second lane as well" while the Ford Focus was there. That evidence cannot be correct. 2. Ms Rozema's evidence was that after the appellant fell off her scooter, the "white station wagon took off" when asked in which lane, Ms Rozema responded "two" (Black 86T – W). As was established in cross-examination this answer could not be correct. The white car could not have taken off in lane two while the Ford Focus remained stationary in that lane. The white car must have passed the Ford Focus and then crossed into lane two if that evidence were correct. The problem with the evidence is that it makes no allowance for the presence of the Ford Focus in lane two. 3. Apart from her memory being "kind of fuzzy, since it was so long ago", there were other problems with Ms Rozema's evidence. She placed the scooter after the accident behind the white station wagon in lane two (Black 87M). In cross-examination she accepted that that was probably wrong (Black 87W). Ms Rozema eventually accepted that because the Ford Focus remained stationary in lane two, the only way the white vehicle could have moved away from the accident site in lane two, would have been if it had changed into lane two after it moved past the Ford. "Q. What I want to suggest is that what you saw was the white vehicle then effectively move into lane 2 once it got past the Ford Focus? A. Okay. Q. Would that be right? A. Could be." (Black 91D – F) 1. Finally, there was the apparent contradiction between the two answers given in re-examination as follows: "Q. At the point at which you say the scooter was squished between the Ford Focus in lane 2 and the white station wagon, where was the white station wagon in relation to the marking between lanes 1 and 2? A. I'm not 100% sure on that one. That one's still a bit fuzzy." (Black 91R – S) "Q. I was asking, at the time when it was engaged in the squishing exercise, where was the right hand side of the white vehicle? A. I would say it was over line 2, over into lane 2." (Black 92K) 1. It follows that it was well open to her Honour to express doubt as to the reliability of this evidence of the position of the white car from Ms Rozema. This was particularly so when it conflicted with the evidence of Mr Ralevski, who had both vehicles and the motor scooter under observation at all times, and was directly behind them. It was his evidence that both the white vehicle and the Ford Focus were properly within their lanes. 2. This ground of appeal has not been made out. Ground 4 – Her Honour erred at [24] that the versions the plaintiff gave at [21] and at [24] were quite different. 1. No submissions were addressed to this ground. It can, however, be quickly dealt with. The ground is based on a misunderstanding of her Honour's judgment. A proper reading of what her Honour said shows that she was contrasting the evidence in [22], (Red 49S), with the evidence in [24], (Red 49X – 50B – H). The contradiction to which her Honour referred was that earlier in her evidence the appellant said that the driver of the Ford Focus had not given her sufficient warning that he was turning right whereas later in her evidence, she said that there was plenty of time for her to move into lane one and that she had her indicator activated for quite a distance before attempting to move into lane one. 2. This ground of appeal has not been made out. Ground 5 – Her Honour erred in failing to place any or any adequate weight upon the defendant driver's conduct in fleeing the scene of the accident. 1. The appellant made no submissions in relation to this ground. Some assistance as to what the appellant had in mind can be inferred from two of the cases on the appellant's list of authorities: Holloway v McFeeters [1956] HCA 25; 94 CLR 470 at 472 and Nominal Defendant v Puglisi (1984) 58 ALJR 474. In both those cases it was established that a victim had been hit by a motor vehicle which was unknown and had left the accident vicinity. In those circumstances it was held that from the departure of the motor vehicle an inference could be drawn that it was in part responsible for the accident. That, of course, is a far cry from the factual scenario here. In this case there was clear and compelling evidence as to the mechanism of the accident and accordingly there was no need for the primary judge to base her decision on inferences. 2. In any event, the factual basis for this ground of appeal has not been made out. Her Honour took into account the fact that the driver of the white vehicle had left the scene of the accident. His motivation for doing so was obvious. He had been driving dangerously leading up to the accident, even though that driving did not cause the accident. As her Honour found this motivation for leaving the accident scene provided no basis for a finding of liability against that driver in circumstances when there was other evidence which established how the accident had occurred. 3. This ground of appeal has not been made out. Damages 1. In view of the failure of the appellant's challenge to liability, there is little utility in considering her challenge to parts of the primary judge's notional assessment of damages. Nevertheless, in deference to the submissions made by the parties the damages issues can be briefly dealt with. 2. The relevant grounds of appeal were: Ground 6 – Her Honour erred in failing to make a finding that the plaintiff was entitled to damages for past out of pocket expenses when this had been agreed between the parties. Ground 7 – Her Honour erred in failing to find the plaintiff has a diminished capacity for work at [130] and accordingly erred in her allowance for future economic loss by way of a buffer which was insufficient having regard to the evidence. Ground 8 – Her Honour erred in failing to make a finding that the plaintiff was entitled to loss of superannuation on future economic loss. 1. Ground 6 was conceded by the respondent. 2. Ground 8 is really a part of the issue raised by Ground 7. Had her Honour determined the appellant's loss of future earning capacity on the basis of a weekly amount as an employee, it would have been necessary for an allowance to be made for loss of superannuation. The approach followed by her Honour was, however, to award a buffer which by implication included in it any entitlement to loss of superannuation. This was particularly so since at the time of trial the appellant was self-employed. 3. In relation to Ground 7, the appellant was born in September 1982 and was aged 32 at the time of trial. As a result of the collisions, the appellant suffered a crush fracture at L1, fractures of three metatarsals of the left foot, a back injury and a psychological injury. Initially the back injury was misdiagnosed as an injury to her hip. It would be fair to describe her medical progress from the date of the accident until the date of trial as difficult. 4. The appellant's condition had, however, improved significantly by the date of trial. In a report of 25 September 2014 the appellant's treating psychiatrist, Dr Hampshire, reported that her psychological problems had settled. He described her as "a far more bubbly and effervescent person than when I last saw her and I no longer think she has a depressive affect or mood" (Blue 41G). He also found that the appellant no longer suffered from a "pain disorder" (Blue 41U). 5. In formulating his opinion, Dr Hampshire reviewed orthopaedic material and noted its content as follows: "She was seen by the orthopaedic surgeon, Dr Wilding, on 13 December 2013 for Toshack Lawyers. He made a good range of opinions on her fractures and reviewed her radiological findings. He also commented on her long term prognosis. He thought she may intermittently experience lower back pain because of the heel compression fractures and she may have limited motion in her left ankle permanently. However, I am delighted to say that these symptoms do not seem to trouble her." (Blue 45P – R) 1. In a later report, dated 3 November 2014, Dr Wilding opined: "Miss Huebner says that she is very positive with respect to the injuries that she sustained and is coping well with her symptoms. Apart from self-directed spinal exercises, no further treatment is indicated. She has started a small business selling seedlings at Camden Markets and remains fit to do this work. She would also be fit for office duties if she wished to undertake office duties in the future." (Blue 126V – W, 127B) 1. The significance of Dr Wilding's reference to office duties was that the appellant was performing office duties when she was injured. 2. The ground of appeal misstates her Honour's finding in relation to future economic loss (Red 69M – U). What her Honour in fact said was: "I do not accept that Miss Huebner has an ongoing diminished capacity for work in the manner asserted by senior counsel for the plaintiff." (Red 69M) Her Honour thereafter analysed the medical evidence in more detail than I have, before concluding that it was appropriate to allow a buffer in favour of the appellant of $100,000. 1. Given the generally optimistic prognosis by the doctors, together with the appellant's previous work history and experience in office work, this was a discretionary assessment well open to her Honour on the evidence and no error has been identified by the appellant in that assessment. 2. It follows that were it necessary to consider that part of the appellant's appeal dealing with the damages, I would allow Ground 6 but dismiss Grounds 7 and 8. Conclusion 1. The orders which I propose are as follows: 1. Grant to the appellant an extension of time to 2 April 2015 within which to bring the appeal. 2. The appeal is dismissed. 3. The appellant is to pay the respondent's costs of the appeal. 1. SACKVILLE AJA: I agree with the orders proposed by Hoeben JA and with his Honour's reasons. I add a brief comment. 2. The primary Judge accepted Mr Ralevski's evidence. Her Honour found that Mr Ralevski was "unshaken on several critical matters", as follows: [1] "a. Both driver and rider were moving backwards and forwards between lanes. In other words, the plaintiff, rather than hanging back and trying to let the white car get ahead and out of the way, seemed to be participating in the activity. b. The driver of the white car repeatedly changed lanes without indicating. c. At no time did the scooter get ahead of the white car. At the time of impact, he said it was still behind the white car but 'moving up to pass it – getting beside it'." 1. Dr Morrison, who appeared on behalf of the appellant, effectively conceded that if her Honour's acceptance of those matters withstands challenge, the appeal must fail. 2. The appellant has not shown any basis for concluding that the primary Judge erred in accepting Mr Ralevski's evidence. Her Honour acknowledged, as did Mr Ralevski in his cross-examination, that he had confused the lanes in which the two vehicles were travelling immediately before the collision. But Mr Ralevski, as her Honour found, was adamant that his account of the attempt by the driver of the scooter (the appellant) to navigate her way between two more or less parallel vehicles was correct. 3. Dr Morrison relied on the evidence of the pedestrian, Ms Rozema, to cast doubt on Mr Ralevski's account. But Ms Rozema did not actually witness the collision as it occurred and her evidence was plainly wrong on some matters. The primary Judge was entitled to prefer Mr Ralevski's evidence to the extent that it conflicted with that of Ms Rozema. 4. Grounds 1 and 2 of the Notice of Appeal attempt to construct an alternative case that was not run at the trial. It is not surprising that this contention was not advanced on the appellant's behalf. The appellant's case was not that she had been so disturbed by the unidentified driver's harassing conduct that she felt compelled to attempt to escape by navigating her way between the two vehicles. Her claim was that she had been hit from behind and pushed into the stationary Ford Focus. It would have been very difficult to run the two cases as alternatives. In any event, the appellant's evidence was not consistent with the alternative case Dr Morrison sought to construct. 5. EMMETT AJA: This appeal arises out of injuries suffered by the appellant, Ms Nicole-Brook Huebner, when a motor scooter ridden by her in King Street, Newtown collided with two motor vehicles. She sued the respondent, the Nominal Defendant, in the District Court on the basis that the collision was caused by the negligence of the driver of one of the motor vehicles, which could not be identified. A judge of the District Court directed a verdict for the Nominal Defendant because her Honour was not satisfied that the conduct of the driver of the unidentified vehicle was causative of the injuries suffered by Ms Huebner. Rather, her Honour found that Ms Huebner's own conduct was the cause of the collision that led to her injury. 6. I have had the advantage of reading in draft form the proposed reasons of Hoeben JA. I agree that the appeal should be dismissed with costs for the reasons proposed by his Honour. ****** Endnote 1. Huebner v Nominal Defendant (District Court, 13 February 2015, unrep) (Primary Judgment), at [55]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2015